The conservative Federalist Society, the centerpiece of an ABC News
story questioning Justice Antonin Scalia’s ethics, today compared the
network’s reporting on the story to the infamous Dan Rather and Mary
Mapes episode regarding President Bush’s National Guard records.

that Scalia was out of town at a Federalist Society legal seminar on
Sept. 29, 2005—the day of Chief Justice John Roberts’ swearing-in
ceremony. The piece contains video footage of Scalia on a tennis court
at the Colorado hotel where he was presenting for a Federalist Society
legal seminar.

Federalist Society Executive Vice President
Leonard Leo on Tuesday released a detailed rebuttal (see below) to the
ABC News segment. He said it grossly distorted Scalia’s involvement in
the two-day Federalist Society conference and exaggerated his time on
the tennis court. Leo also questioned the legality of the video
footage, which he called an invasion of privacy.

“Justice
Scalia taught a comprehensive course about the separation of powers
under our Constitution,” Leo said. “Reminiscent of Dan Rather’s and
Mary Mapes’s false National Guard story, ABC Nightline knew in advance
of airing its program that he did not simply ‘attend’ a ‘judicial
education seminar,’ and it grossly misled viewers by suggesting that
the event was a ‘junket’ rather than a serious scholarly program that
required much work and advance preparation.”

Prior to the
story’s airing Leo said he spent time on the phone on multiple
occasions with ABC News Producer Rhonda Schwartz to clarify errors in
the story, including her belief that Scalia was on a tennis excursion.
He said Schwartz and her colleagues showed no interest in correcting
the errors.

But more importantly, Leo said, is the concept ABC
News suggests in the piece: that it is unethical for judges to interact
with lawyers. Leo called it “absolutely absurd” that judges should be
bound by some sort of “gag rule” preventing them from attending
conferences such as those sponsored by the Federalist Society.

The ABC News segment featured Stephen Gillers, a New York University
law professor, who the network calls “a recognized scholar on legal
ethics.” Gillers attacked Scalia for his involvement in the conference,
calling it “an activity that is itself of dubious ethical propriety.”

And
as for the tennis game, Leo said ABC News’ emphasis on Scalia’s
play—including video at the beginning of the segment, suggesting he was
in Colorado for recreation, not business—distorts the whole story.

“The event started at 8 a.m. each of the mornings,” Leo said, “and,
despite ABC Nightline’s emphasis on Justice Scalia participating in
tennis at the hotel, he spent less than two hours playing the game over
the course of those two days.”

Leo also said the hotel where
the conference was held had denied ABC News’ request to videotape, but
despite this, the network used undercover cameras in some cases. Leo
called it illegal and an invasion of privacy for the hotel’s guests.

A representative of ABC News was not immediately
available to respond to the Federalist Society’s charges.

Federalist Society Executive Vice President Leonard Leo released the
following information Tuesday in response to the ABC News report about
Justice Antonin Scalia’s attendance at a Federalist Society-sponsored
legal seminar last September.

Justice Scalia....Teaches A Course The Facts

1. Justice Scalia taught a comprehensive course about the separation of
powers under our Constitution. Reminiscent of Dan Rather’s and Mary
Mapes’s false National Guard story, ABC Nightline knew in advance of
airing its program that he did not simply “attend” a “judicial
education seminar, ” and it grossly misled viewers by suggesting that
the event was a “junket” rather than a serious scholarly program that
required much work and advance preparation.

• Justice Scalia
taught a 10-hour course while in Colorado, lecturing the more than 100
lawyers in attendance as well as answering numerous questions they
presented.

• Prior to the course, Justice Scalia produced a
481-page course book containing edited cases on separation of powers
issues. All attendees received the book in advance and were expected to
review the material and prepare in advance of the course.

•
Justice Scalia arrived and left Colorado without spending any extra
days to engage in recreational activity. He arrived at the hotel the
night before the course at 11 p.m., having traveled by car for three
hours the night before. He departed at around 6:30 a.m. the morning
after the course ended in order to fly back home. The event started at
8 a.m. each of the mornings, and, despite ABC Nightline’s emphasis on
Justice Scalia participating in tennis at the hotel, he spent less than
two hours playing the game over the course of those two days.

• Justice Scalia presented the course with LSU Law Professor John
Baker. Both were present together on the rostrum for the ten hour
course, and both received reimbursement for travel and lodging.

• John Baker received an honorarium. Justice
Scalia did not.

2. Justice Scalia did not attend Chief Justice Roberts’s swearing-in
ceremony at the White House on September 29 because he chose to respect
a longstanding commitment to teach a course to over 100 lawyers who had
traveled from at least 38 states. This was not, as Nightline suggested,
missing an important Washington function so as not to miss a tennis
outing.

• There was virtually no advance notice that John
Roberts would be confirmed and sworn-in on September 29. It was not
absolutely clear until the day before.

• Justice Scalia had
accepted the invitation to teach on October 10, 2004—nearly a year
before the course dates. Almost all participants had registered and
paid for the course by August 2005, nearly two months in advance.

• To have cancelled just a couple of days before the start of the
course would have caused many attendees to lose the money the spent on
plane tickets and hotel deposits, and, as the sponsor, the Federalist
Society would have faced tens of thousands of dollars in damages that
would have to be paid to the hotel for breaking a contract.

3. Justice Scalia was teaching a scholarly program
that was educationally rigorous and open to anyone who wanted to come.

• The course was approved by at least 30 state bars for continuing
legal education credit. Most of the lawyers in attendance have to take
such accredited continuing legal education programs in order to remain
licensed to practice law.

• The Federalist Society welcomed
anyone who wished to come to the event. Members simply were asked to
pay the registration fee, and non-members were welcome to attend if
they paid the Society’s nominal dues ($5 for students, $25 for lawyers)
along with the registration fee. Indeed, at least 10 of those who came
to the course were non-members who joined and paid the registration fee
in order to attend.

• More than 100 lawyers and law students were in attendance.

4. ABC Nightline was fully aware that its piece was misleading and
inaccurate, and the way in which it prepared the story bespeaks
hypocrisy.

• Several hours before the program aired, the
Federalist Society spoke with Nightline’s senior producer, David Scott,
as well as the investigative reporter who worked on the story, Rhonda
Schwartz. The Federalist Society set forth the above facts and made
very clear that tennis occupied a miniscule part of Justice Scalia’s
time in Colorado. Nightline nevertheless chose to lead with a “tennis
outing” theme and grossly failed to present the facts surrounding the
course in a way that demonstrated the amount of time and work involved.

• At least a week before this conversation, the Federalist Society had
spoken with Rhonda Schwartz and informed her in explicit terms that
Justice Scalia taught a 10-hour course attended by lawyers.
Nonetheless, ABC’s website, on the night of the broadcast, cast the
issue as Justice Scalia attending a judicial education seminar. There
is a world of difference between teaching a 10-hour course and coming
to a resort to hear other speakers between various recreational
activities—but Nightline chose to manufacture the false impression that
Justice Scalia was at a function that entailed much play and little
work.

• It is ironic that, in preparing a story that seeks to
make the point that judges should be held to high standards of ethical
integrity, ABC itself broke the law by trespassing on private property
and invading the privacy of private individuals who did not give
permission to be videotaped. Indeed, ABC contacted the hotel for
permission to film the Society’s activities, and permission was denied
by hotel management.

Theoretically, it might have been yet another one of those culture clashes -- conservative versus liberal, red state versus
blue state -- that nobody is, post-Nov. 2, in the immediate need of.

It was Scalia, you see, whose pointed disdain for affirmative action policies led him to ask, during U-M's Supreme Court fight,
why the law school didn't simply lower its elite standards if it wanted more diversity.

Perhaps, he'd mused, a state law school didn't need to be so elite. (That work might be left to Harvard, the law school he
attended, or other private colleges.)

On campus, Scalia -- with his reputation for intellectual rigor and contempt for those lacking it -- was perhaps the one Supreme
Court justice who might be considered, as law professor Richard Friedman put it, "anathema," to those who hold dear the idea
of a living, breathing U.S. Constitution.

This very idea is what riles Scalia. "We have become addicted to, inordinately fond of, the idea of a living Constitution,"
he said, with a sarcastic edge in his voice. "Oh, how I hate that phrase."

Want to change the law of the land? "There are provisions for that. ... Pass a law, amend the Constitution." Heck, he might
as well have said: "Stick a fork in it." His point was: Don't let nine lawyers adapt the meaning of the Constitution to these
times. Either the Founding Fathers mentioned abortion or female suffrage or they didn't.

"But don't come to me and ask me to do it," he said.

The sitting Supreme Court judge on public view, bandying bon mots and challenging questioners, is rare enough that nobody
at the University of Michigan recalls another instance of such an appearance. And Scalia drew a standing-room only crowd of
skeptics and admirers, including a number of U-M law professors who admire his intellectual prowess and rigor, if not, necessarily,
his point of view.

If judges are expected to exhibit temperance and tolerance and a kind of even-handedness, well, Scalia defied expectations
and flaunted -- in the heart of politically correct territory -- his lack of interest in those rules.

"I don't like sandal-wearing bearded weirdos ... who go around burning flags," he observed, in a room that contained more
than a few who might match the description.

He stared down second-year law student Megan Roberts, as she bravely questioned him on a technical legal point and struggled
to keep going, beneath his withering gaze. "I admit, I was intimidated," Roberts told me later, mentioning his "sarcastic
and dismissive" approach. Even the obligatory public demonstration -- a few students carrying construction paper signs silently
through the room -- was staged politely.

Maybe even the noisemakers are tired.

But in these harsh and hostile times, the reaction to Scalia's appearance struck me as a triumph for civility and freedom.

Two Former U.S. Attorneys General Criticize the Growth of Federal Crime Statutes
The Federalist Society and the Heritage Foundation co-hosted a discussion of Prof. John S. Baker, Jr.'s groundbreaking study
commissioned by the Federalist Society, "Measuring The Explosive Growth of Federal Crime Legislation." A webcast of the discussion
with former Attorneys General Edwin Meese and Richard Thornburgh is available at the Heritage Foundation's event archive page.
Please click HERE to watch this event.

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Awards and Fellowships
The Federalist Society has three opportunities available for young legal scholars.We are now seeking nominations for the Paul
M. Bator Award and applications for the John M. Olin Fellows in Law.